Too v Tongoi

JUDGMENT 1. Under Article 260 of the Constitution of Kenya 2010, the term ‘land includes the surface of the earth and the subsurface rock. 2. The land in dispute herein is a portion of land measuring 0.0551 Acres of the suit land reference number Nandi/Kombe/675 located within Nandi County. 3. The suit was undefended and heard by way of viva voce evidence after the originating summons dated 13th October 2025 was converted to a plaint further to the directions of the court given on 29th September 2026. 4. The plainti through the rm of Cheruiyot Melly and Associates Advocates instituted this suit against the defendant by way of the originating summons for the following principal orders; 5. a) A declaration that the Defendants' right to recover a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 is barred under the Limitations of Actions Act Cap 22 of Laws of Kenya, and title over the portion in occupation/use of the plainti thereto extinguished on the grounds that the Plainti herein has openly, peacefully and continuously been in occupation or use and/or possession of the aforesaid land parcel for a period exceeding 12 years. b) That there be an order that the Plainti be registered as the proprietor of a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 in place of the Defendant and/or the register thereof be rectied to reect the Plainti's ownership of the aforesaid land parcel. c) That the Defendant herein be ordered to execute all the requisite transfer documents necessary to have the Plainti be registered as owner of a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675, and the registration decreed by the court, in default, the Deputy Registrar and/or court's administrative ocer be at liberty to execute all such necessary documents to give eect to the judgment and/or decree of the court. The Originating Summons is premised upon the plainti’s supporting adavit of fteen paragraphs sworn on even date with a copy of a certicate of ocial search (SKT-1) annexed thereto and the grounds, inter alia; a) The Plainti has peacefully and openly occupied and utilized a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 for an uninterrupted duration exceeding 12 years, w.e.f the year 1992, and has thus acquired ownership by way of prescription and/or adverse possession. b) That Kiplagat Arap Tongoi is currently the registered proprietor of Land Parcel Number Nandi/Kombe/675 wherein the Plainti has freely and continuously occupied and cultivated for over 12 years. c) That the Plainti herein took over possession and occupation over a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 since 1992, upon purchase of the same, and has improved the property and continues to receive proceeds out of the same land openly and adversely and without interruption to date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6165/eng@2026-09-30 2

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d) 6. That 6the Defendant’s title in respect of a portion measuring approximately 0.055 Acres out of land parcel Number Nandi/Kombe/675 herein has been extinguished and the same acquired by the Plainti by operation of law. In his adavit in support of the Originating Summons, the plainti averred in part " a) That I know of my own knowledge that the interests of the Defendant to the suit land have since been extinguished by euxion of time under the limitation of Actions Act and I have since acquired ownership over the said land by way of adverse possession and/or prescription. b) That I know of my own knowledge that having been in constant exclusive occupation, use, possession of the said parcel of a portion measuring approximately 0.0551 Acres out of land parcel Number Nandi/Kombe/675 since 1992, and to-date there having been no interruption of the occupation for a period beyond 12 years. I have acquired the said parcel of land by adverse possession by operation of the law, and I am in fact, the rightful and genuine owner of the land while the defendants are by law, merely holding title in his names in trust and for my benet.” 7. In his testimony, the plainti (PW1) testied by relying on his statement dated 13th October 2025, the Originating Summons and the accompanying documents including the certicate of ocial search dated 16th October 2025 (PExhibit 1) a letter dated 26th May 1992 indicating his occupation of the portion of the suit land (PExhibit 2) uninterruptedly since 1992 to-dates. He called PW2, John Kiptarbei Rono who conrmed that PW1 is in possession of the portion of land 8. Mr Serem learned counsel for PW1 orally submitted; ‘……Having purchased the portion of land in 1992 from the defendant, his rights crystalized in 2004. He has been thereon uninterrupted as the defendant has never attempted to evict him… ‘ 9. It is trite law that the issues for determination in a suit generally arise from either the pleadings or as framed by the parties for the court’s determination; See Galaxy Paints Co Ltd-vs-Falcon Grounds Ltd (2000) 2 EA 385 and Order 15 of the Civil Procedure Rules, 2010. 10. I have duly considered the originating summons, the testimonies of PW1 and PW2 and the plaintis oral submissions. Therefore, the issues for determination are whether the plainti has established his claim for adverse possession over the portion of the suit land to the requisite standard to entitle him to the orders set out on the face of the originating summons. 11. Notably, adverse possession doctrine has been discussed in a long range of authorities inclusive of the Court of Appeal decision in the case of Wilson Kazungu Katana and 101 others--vs-Salim Abdalla Bakshwein and another (2015) eKLR that adverse possession doctrine dictates as follows; a) The parcel of land must be registered in the name of a person other than the applicant, b) The applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6165/eng@2026-09-30 3

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c) The applicant must be in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner. 12. On the rst dictate, PW1 stated that the suit land is registered in the name of the defendant. Clearly, PExhibit 1 shows that the said registration was done on 5th March 1990 and title deed issued accordingly on 2nd June 2004. 13. The plainti’s claim is over 0.0551 hectares in area, a denite portion of the suit land as held in the case of Muthuita –vs- Wanoe & 2 others (2008) 1KLR (G&F) 1024. 14. Regarding the second dictate, it is settled law that possession can take dierent forms including fencing and cultivation of the suit land; see Titus Ong’ang’a Nyachieo=vs= Martin Okioma Nyauma and 3others (2017) eKLR. 15. PW1 told the court as follows; ‘From the year 1992, I have been in occupation of the portion of the suit land to-date. I have never been evicted or issued notice thereof.’ 16. PW2 corroborated the evidence of PW1 that he is in possession of the portion of the suit land. This witness stated; ’PW1 and myself do possess our respective portions of the suit land LR. No. Nandi/ Kombe/675 which was formerly LR. No. Nandi/Kombe/532. His portion is 30 ft by 80 ft in area. He does cultivate the portion where he plants or grows maize crop. ‘ 17. The testimony of PW2 was that PW1 cultivates the portion of the suit land. That piece of evidence is in line with the plainti’s testimony inclusive of PExhibit 2 that PW1 has been in continuous possession of the portion in excess of the prescribed timeframe. 18. A s regards, it is pretty clear that PW1 bought the portion of the suit land from the defendant in 1992. The agreement was determined and he took possession of the portion. The plainti’s entry and continued or hostile possession in form of cultivation of the 0.0551 acres by PW1 ripened into adverse possession after 12 years namely in 2004 extinguishing the rights of the defendant as I endorse the submissions by learned counsel for the plainti; see also Okul & another vs Ondieki & 3 others {2026} KECA 882 KLR. 19. The testimonies of PW1 and PW2 were rm that that PW1 is in exclusive uninterrupted possession of the portion of the suit land for over 12 years That the defendant who is the registered owner and not in possession of it has been dispossessed thereby. So, PW1 deserves to be registered as the proprietor of the said portion in place of the defendant. 20. In conclusion, it is the considered view of this court that the plainti has established the ingredients of adverse possession over the suit land to the requisite standards as noted in Katana and Okul cases (supra) as well as Gatimu Kinguru-vs-Muya Gathangi (1976-80) 1 KLR 317. His claim is cogent and unchallenged hence, must succeed. 21. Thus, Judgment is hereby entered for the plainti against the defendant in consonant with the originating summons dated 13th October 2025 as follows; a) A declaration that the Defendants' right to recover a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 is barred under the Limitations of Actions Act Cap 22 of Laws of Kenya, and title over the portion in occupation/use of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6165/eng@2026-09-30 4

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plainti thereto extinguished on the grounds that the Plainti herein has openly, peacefully and continuously been in occupation or use and/or possession of the aforesaid land parcel for a period exceeding 12 years. 22. b) That there be an order that the Plainti be registered as the proprietor of a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675 in place of the Defendant and/or the register thereof be rectied to reect the Plainti's ownership of the aforesaid land parcel. c) That the Defendant herein be ordered to execute all the requisite transfer documents necessary to have the Plainti be registered as owner of a portion measuring approximately 0.0551 Acres out of Land Parcel Number Nandi/Kombe/675, and the registration decreed by the court, in default, the Deputy Registrar and/or court's administrative ocer be at liberty to execute all such necessary documents to give eect to the judgment and/or decree of the court. d) Costs of this Originating Summons be borne by the Defendants. It is so ordered. DATED and DELIVERED at KAPSABET this 30th day of SEPTEMBER 2026. HON. G. M. A. ONGONDO JUDGE In the presence of ;1. Mr Victor Kiprono instructed by Mr Serem learned counsel for the plainti 2. Walter and Emmaculate, court assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6165/eng@2026-09-30 5

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